Category Archives: Criminal Justice

In the wake of the protests in Ferguson and Baltimore, there has been a lot more finger-pointing than sound analysis, with progressives accusing police of systemic disregard for the lives of black citizens and conservatives blaming “urban” (aka black) family dysfunction for a culture of lawlessness to which police justifiably respond. (If people don’t break the law, the meme goes, they have nothing to fear from the police.)

As with all gross generalizations, both of these broad-brush descriptions are wrong. Worse, to the extent they become common wisdom, they get in the way of our ability to solve real problems.

Are some police officers racists? Sure. But most aren’t–most are trying to do difficult jobs in situations that are often dangerous. That said, many more–especially but not exclusively in smaller communities– have been inadequately trained or badly managed, and those are issues that we can and should address.

The stereotype about black families has long been a staple of apologists for official misbehavior. It undoubtedly fits some urban families. But ironically, recent research suggests that the stereotype is much more likely to apply to white families in deep-red, rural America. As Thomas Edsall recently reported

In the fall of 1969, Merle Haggard topped the Billboard country charts for four weeks with “Okie from Muskogee,” the song that quickly became the anthem of red America, even before we called it that.

“We don’t smoke marijuana in Muskogee, we don’t take our trips on LSD, we don’t burn our draft cards down on Main Street, we like livin’ right and bein’ free,” Haggard declared. “We don’t make a party out of lovin’, we like holdin’ hands and pitchin’ woo.”

In 2013 just under two-thirds of the births in the city of Muskogee, 62.6 percent, were to unwed mothers, including 48.3 percent of the births to white mothers. The teenage birthrate in Oklahoma was 47.3 per 1,000; in Muskogee, it’s 59.2, almost twice the national rate, which is 29.7.

The problem with stereotypes–of police, of urban dwellers, of racial groups–is that they prevent us from seeing individuals and situations as they are. Pat answers and dismissive characterizations don’t solve problems–they perpetuate them.

It’s the end of the semester, and like all professors at this time of the year, I am slogging through research papers and final exams, and complaining about otherwise bright students who can’t write a grammatically correct, properly spelled sentence. Or follow instructions. Or…

I’ll survive. (Although some students probably won’t…)

So long as their papers focus on the intersection of law and policy, I allow my students to explore whatever subjects interest them. For reasons I don’t understand, this often results in “waves” of papers addressing the same topic–in past years I’ve gotten several papers on the death penalty, or gun control, or euthanasia. This year, the favorites have been marijuana legalization and private prisons. (Students endorse legalizing pot; they object to privatizing prisons.)

The papers on private prisons compared inmate treatment, costs, oversight–the sorts of issues you would expect undergraduates to identify. But one of them also focused on a less-obvious consequence of prisons as business: lobbying by the “big guys” for more stringent punishments.

The two largest for-profit prison companies in the United States – GEO and Corrections Corporation of America – and their associates have funneled more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying efforts. Meanwhile, these private companies have seen their revenue and market share soar. They now rake in a combined $3.3 billion in annual revenue and the private federal prison population more than doubled between 2000 and 2010, according to a report by the Justice Policy Institute….

My students are quite properly critical of a system in which the profit motive, rather than public safety considerations, drive criminal justice policy.

I haven’t the heart to tell them that we live in an era when most policies aren’t the result of democratic deliberation informed by evidence and expertise — an era in which public policies are increasingly determined by campaign contributions and well-heeled lobbyists whose primary concern is for the bottom line–and screw the public good.

We’re at that point in the semester when my students in Law and Public Policy are doing their team presentations–sharing the results of research via Power Points and mock debates. More than one of these presentations has taught me something I didn’t know. (This is one of the “perks” of the profession, actually–you learn a lot when you teach.)

One of the teams chose to research prison privatization, a subject about which I know very little.

They began by noting that private prisons were rare prior to 1980, that they became more common in the eighties, and that between 1990 and 2009, America experienced a 1600% increase in its prison population. Given the significant sums of money involved, they wondered whether this dramatic increase in incarceration might be at least partially explained by contractual obligations to fill cells in those proliferating private facilities.

Corrections Corporation of America and the GEO Group dominate the private prison industry, and according to the students’ research, the industry is very profitable. (Corrections Corporation of America had a share price of $1 in 2000; in 2013 it was $34.34.) In one representative contract, in Tennessee, CCA was guaranteed an occupancy rate of 90%, a guarantee that required frequent moves of inmates out of public facilities and into the private ones. Both the guarantee and the frequent shuffling of prisoners are evidently common.

You don’t have to be a bleeding heart to recognize that inmates–large numbers of whom have not been convicted of violent crimes– are entitled to be treated humanely. The number of fines, lawsuits and investigations into the management of these facilities strongly suggests that the profit motive takes precedence over the provision of basic medical care, nutrition and even physical safety.

Where there’s profit, there’s usually politics, and private prisons are no exception.

In 2013, the Indiana General Assembly undertook to modernize the state’s criminal code. One of the original changes would have reduced penalties for possession of small amounts of pot; however, Governor Pence intervened, insisting that penalties for marijuana possession and dealing be increased rather than decreased.

According to a news article at the time,

One proposed change expected to be voted on Thursday would make possession of between about one third of an ounce and 10 pounds of marijuana the lowest-level felony rather than the highest-level misdemeanor. Indiana is eighth on the list of states where GEO does its spending, as it’s sunk more than $60,000 into state elections there. It specifically contributed $12,500 to the 2012 Pence campaign, which doesn’t seem like much without context. That contribution made GEO one of Pence’s top 30 corporate contributors, ranking in front of US Steel Corp, Caterpillar, and Koch Industries.

The Ballard Administration’s proposal to build a new Justice Center complex across the river from downtown just hasn’t smelled right for a whole host of reasons.

No one seriously doubts the need for such a facility, but critics have raised a host of legitimate concerns about this particular proposal. The excessive secrecy with which bids were solicited and evaluated raised red flags. The decision to use private financing via a lease/purchase when a public bond issue would be significantly cheaper makes no sense. The Council’s fiscal analyst has challenged the accuracy of claims that cost savings would cover lease payments without a need to raise taxes.

It isn’t just fiscal concerns, important as those are. Prior administrations have spent millions of dollars and much political capital building a robust downtown; what will happen to that downtown market if lawyers and other justice system enterprises (from bondsmen to court reporters) no longer work, shop and eat in the center city?

Architects and city planners have panned the design, and criminal justice reform groups have warned that going ahead as currently planned will foreclose needed changes to a dysfunctional system.

The Administration has ignored the critics, shrugged off the concerns and intensified pressure on the Council for a quick approval. That insistence on the need for haste has been unseemly, considering the huge amounts of money involved and the important issues raised, and Councilors on both sides of the aisle have expressed a desire to engage in a far more thorough and public review.

Indianapolis City-County Council Chief Financial Officer Bart Brown said councilors have told him they’ve been offered up to $50 million in projects spread among five districts if they vote to approve the proposed $1.6 billion criminal justice complex.

The Administration has dismissed these allegations as “rumor,” and I certainly have no independent evidence one way or the other. It seems highly unlikely, however, that five City-County Council members would invent such a story out of whole cloth.

a deal this complex and expensive, intended to span this long a time-frame, needs to be done right. That means it needs to be thoroughly vetted by all stakeholders. I get suspicious when we’re given a short window within which to commit vast amounts of public money, and when the purported need for speed is based upon dark warnings that we need to move quickly in order to “lock in” benefits we aren’t even sure are there.

I get a lot more suspicious when those lobbying for speed are offering a quid pro quo.

I suspect that someone stands to make a lot of money, and I’m pretty sure it isn’t us taxpayers.

The House Bill 2918 introduced by Texas Representative Jason Villalba (R-Dallas) would make private citizens photographing or recording the police within 25 feet of them a class B misdemeanor, and those who are armed would not be able to stand recording within 100 feet of an officer.

As defined in the bill, only a radio or television that holds a license issued by the Federal Communications Commission, a newspaper that is qualified under section 2051.044 or a magazine that appears at a regular interval would be allowed to record police.

This is exactly the sort of measure for which the Yiddish word “chutzpah” was invented. (For you non-Yiddish-speakers, “chutzpah” has been defined–inadequately–as “gall or nerve.” The standard illustration is a kid who kills his parents and then throws himself on the mercy of the court because he’s an orphan.)

The ubiquity of cameras has uncovered troubling and evidently none-too-rare incidents of police misconduct, most of which have involved the fatal shootings of unarmed black men. You might think that the appropriate response would be aimed at correcting the problem: better training, psychological testing to weed out the bad apples, etc.

But no.

Since it appears that cameras have made it harder to get away with unconscionable behavior, we should get rid of the cameras. Problem solved.